The Corona Virus and Custody – Welcome to the Twilight Zone

Just when you thought it was over with a Court Judgment or a Separation Agreement, along comes a world-wide health emergency to disrupt the order of things. Family law attorneys generally do not look forward to the beginning or end of summer or the Christmas holidays. The issues of visitation reopen the wounds as the parties are expected to facilitate the turnover of the children. The fear, angst, and unknown that grips parents put the Orders to the test. But what about the impact of the Corona Virus?

What if I send my kids and she doesn’t return them? What if I send my kids and he doesn’t meet me at the half-way point because he can’t? What if the child gets quarantined while with the visiting parent? Can I withhold the child because I am afraid the other parent will claim they are concerned for the child’s safety in my care? What about school? These are all good questions but remember that we are in uncharted territory with this health crisis. So what is the answer? The truth is as this is the first time this has happened, the law does not have a ready-made easy legal solution. With Court suspended for at least a month, a legal fix is going to come well after the fact, not react in advance based only on your fears. The Court expects people to proactively follow the Order/Agreements and will react to the conduct of the parents in unreasonably failing to do so.

The solution then relies in how you address the problem. Note that most of the questions suggest an anticipated amount of blame of the other parent and is based upon speculation of their anticipated conduct. Blame is never part of the solution. Always remember that the Court Order or Separation Agreement starts with setting out the time each parent will have with the children. Neither you, your family, the military, your attorney, nor anyone other than the Judge has the legal right to change that on their own. Certainly in an emergency the Civil Authorities or the military command may enact regulations that may interfere with the logistics of the Court Order, but self determination to alter the custodial time should be resisted at all reasonable costs. Do not call CPS or 911 and expect the Sheriff to run around picking up children to return them to the proper custodial parent if a quarantine is ordered. Do not expect to get permission to violate the quarantine rules to go pick up the children. If it happens that the children end up in the wrong house at the wrong time recognize that some things are beyond your control and accept that the rules are for the best interest of the community as a whole in this emergency. We understand that there will be unintended consequences but don’t make a bad turn of events worse by making a poor decision that will be second-guessed later by the Court. Your short term panic may yield long term harm to your custodial position. The solution starts by meaningful and direct communication with the other parent. Not just texting and email but show some civility and actually talk to the other parent on the phone. Discuss what is in your child’s best interests and co-parent to ensure the child, who is probably scared of all the doomsday talk, knows that both parents are working together to get through this.

As to the sample questions, if a parent does not return the children and had an opportunity to remain in compliance with the custody arrangement, then the court can hold them accountable for their terrible self-centered decisions. Nothing says you can’t travel the entire distance to recover your child, if allowed by travel restrictions, but do not think that means you can barge into the house of the other parent to enforce your rights. If law enforcement is not available to assist then back off unless you want to be quarantined in the jail or charged with Domestic Violence. Document what happens, attempt to keep in touch with the children, and then seek legal counsel when this emergency is over. Remember that the attorney is subject to the same restrictions as you and with the court closed, venting on them does not advance your position or speed up a legal process that is closed for business. If you make a bad decision to keep the child, expect that you may find new restrictions on your custody as you have demonstrated that you will take advantage of an emergency to frustrate a Court Order or Agreement.

If a parent cannot get to the turnover point for a legitimate reason, like the military restricting out of town travel, understand that if you are not subject to the same limitations, you can travel the entire way to pick up the child. Yes it is inconvenient but it is a solution. That same solution also means that during the next turnover that one parent should plan to do all the transport to make it happen and make no mistake, the court wants it to happen. The child needs a relationship with both parents. But it’s unfair! To you or the child is what the Court will ask? Your inconvenience is second place to the child’s needs to spend time with the other parent. You can work out comp-time for the added travel time later, or even consider being helped by family and friends to assist. If you receive the courtesy of a parent going the extra distance, tell them you appreciate it and plan on returning the favor. Don’t think the Court will accept a hardline approach of saying no visitation if you can’t do your part.

If the child becomes quarantined for medical reasons or frozen in place by travel restrictions, document the details. Again, don’t think the Court is going to endorse contrived emergencies that result in the child’s custody being improperly extended with one parent or another. If something comes up, immediately call the other parent and discuss it. Don’t think that an email or text will suffice. They may supplement the conversation but co-parenting should be through actual voice communication with an open sharing of information. Look for a work around solution. Keep your emotions in check and discuss the problem in a civil manner. You may not like the recording the Court hears of your response.

Fear of what could happen is never an excuse to violate an Order or Agreement. The Court will judge you on your conduct in response to an event; not the level of fear you felt. If you exercise that option, expect to lose in Court and that may cost you money and trust from the Judge when it comes to future visitation.

Finally, School. Unlike after hurricanes where there is no internet and no power and possibly no physical school. School is still going on in ways most of us would never have imagined. It is requiring direct involvement of the parents on a daily basis as the students have a curriculum and regular school hours even-though the school house is now their home. Parents daily clarifying issues with teachers is a challenge but is the name of the game. No it isn’t perfect as teachers have had this crisis thrust into their laps. Coming up with an online curriculum on the fly is a daunting task without the added pressures of this emergency. This is not vacation time for the children that warrants increased visitation by a parent. They have homework assignments, online obligations and observation and reporting requirements to teachers on a regular basis. As the teachers get a handle on this, with little help other than from each other, it will improve. Consider this impact and obligation to the child when you think about keeping the child past your period of custody. Are you ready to assume the responsibility for the education? Are you truly plugged into the system with the technological ability, teacher contacts, details of assignments, etc.? Are you able to justify to the Court why your failure to comply with the custody terms is warranted despite the impact on the child’s new reality? The Court is not going to endorse your belief that you can do a better job than the other parent if the result is you defy the existing custody arrangement. It also won’t help your case if you step into a work in progress and end up punting the school year for your child because you are late to the party.

Custody is about the child and their right to have a meaningful relationship with both parents. Make sure your decisions will stand up to scrutiny of the Court. Always take the high road. Decisions are easy for Judges when it is the choice between good and bad. Your child deserves better than giving the Judge a choice between the lesser of two evils. Make sure the decisions you make are not tempered by what you want to happen but rather by what should happen for the sake of the child in light of the Court Order. Most important, keep talking to each other, share pictures of the children, allow free access between the parent and child, and be civil in these trying times. Welcome to the Twilight Zone, you are not alone.

Thomas D. McNamara, Attorney at Law


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